RP v R

CA 174; (2000) 112 A Crim R 201 Regina v JDB [2005] NSWCCA 102; (2005) 153 A Crim R 164 Regina v KBM [2004] NSWCCA 123 Regina v KLH [2004] NSWCCA 312; (2004) 148 A Crim R 515 Regina v SDM [2001] NSWCCA 158; (2001) 51 NSWLR 530 RH v Director of Public Prosecutions (NSW) [2013] NSWSC 520 Sabel v R; R v Sabel [2014] NSWCCA 101 Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 SKA v R [2011] HCA 13; (2011) 243 CLR 400 Slade v The Queen [2005] NZCA 19; [2005] 2 NZLR 526 Thammavongsa v Regina [2015] NSWCCA 107 W v R [2014] NSWCCA 110 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 Texts Cited: Matthew Johnston, 'Doli Incapax' (Paper presented at the Legal Aid Children's Legal Service Criminal Law Conference, Sydney, 30 May 2009) Category: Principal judgment Parties: RP (Applicant) Crown (Respondent) Representation: Counsel: P Wass SC & C Bembrick (Applicant) G O'Rourke (Crown)

Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2012/330538 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 05 December 2014 Before: Letherbarrow DCJ File Number(s): 2012/330538

Judgment

1. JOHNSON J: I have had the advantage of considering, in draft, the judgments of Davies J and Hamill J. I agree with the reasons and orders proposed by Davies J.
2. I wish to make some short comments concerning the conviction appeal on count 3, as to which their Honours have reached different conclusions.
3. Both Davies J and Hamill J approach the issue upon the basis that the finding on doli incapax concerning count 2 has some bearing with respect to count 3 (see [78], [145], [160]). I agree with this approach.
4. It falls to the Crown to rebut the presumption of doli incapax to the criminal standard on each count. However, the context in which the issue arises is important. Where, as here, there are several counts and the presumption is rebutted on an earlier count (count 2), this finding may be taken into account where a similar offence is alleged to have occurred weeks later (count 3).
5. This is not to apply some automatic consequence, the approach accepted in the District Court. Rather, it acknowledges that the doli incapax issue will be considered in the context of the developing understanding of a child which takes into account the child's previous acts, knowledge and experiences (such as in this case, count 2).
6. The finding on count 2 means that the Applicant was aware that what he did on that occasion was seriously wrong. A few weeks later (see [28] cf [157] [160]): (a) the Applicant asked the Complainant to come into a room after their father had departed the premises; (b) the Applicant took his own pants down to get his penis out; (c) on seeing this, the Complainant ran towards the door, but the Applicant stopped him; (d) the Complainant called for his sister (who was outside), but the Applicant grabbed him and put him face down on the floor; (e) the Applicant pulled the Complainant's pants down and commenced to have penile/anal intercourse with him for what was said to be two to three minutes; (f) the Applicant stopped when the boys heard their father returning on a motor bike.
7. Count 3 involved not only the conduct giving rise to the offence, but the clear manifestation to the Applicant, by his attempted flight, that the Complainant did not want to participate in these acts. The Applicant took hold of the Complainant and put him face down on the floor.
8. Although some features present in count 2 are not present in count 3, the circumstances attending the Applicant's act, and the manner in which it was done, establish that the Applicant was aware, as with count 2, that what he did was seriously wrong.

The procedure at the trial

1. As noted the Applicant elected to be tried by a judge alone. The Crown consented to that course, the judge was satisfied that the Applicant had received legal advice and understood the consequences of that election and his Honour therefore granted leave.
2. The trial proceeded with the tender of documents. No oral evidence was called. The Complainant's evidence was unchallenged. The evidence consisted of the following: (a) A DVD and an edited transcript of the Complainant's interview with the police on 4 September 2013; (b) An edited statement from the Applicant's mother; (c) An edited statement from the Applicant's sister (in respect of count 4 only); (d) Psychologist's report by Mr Peter Champion dated 1 February 2012; and (e) A Job Capacity Assessment Report dated 6 October 2010.
3. At the close of the Crown case the Trial Judge acceded to a submission made on behalf of the Applicant that there was no case to answer in relation to count 1. His Honour entered an acquittal in relation to that count. His Honour also determined, consistently with that acquittal, that the statement of the Applicant's mother (17 above) could no longer be relied upon for the later counts.
4. It was accepted by counsel appearing for the Applicant at the trial that if the Trial Judge found that the presumption of doli incapax had been rebutted beyond reasonable doubt by the Crown in relation to count 2, this would mean that such presumption had also been rebutted beyond reasonable doubt in relation to counts 3 and 4 as it was accepted that they occurred later in time.
5. The Trial Judge noted that the only issue for determination, as agreed between the Crown and those appearing for the Applicant, was one of doli incapax. The Applicant did not argue that the other elements of the three offences in counts 2, 3 and 4 had not been proved beyond reasonable doubt on the evidence tendered by the Crown and which was admitted without objection and without challenge.
6. The Applicant now seeks leave to appeal on the following grounds:

Conviction Ground 1: The verdict on count 2 is unreasonable in that the Trial Judge erred in finding that he was satisfied that the evidence of circumstances surrounding the commission of count 2 established beyond reasonable doubt that the accused knew that what he was doing was seriously wrong and that no other rational inference arose. Ground 2: The verdicts in counts 3 and 4 are also unreasonable. Ground 3: The Trial Judge erred in finding that "as a matter of logic" the accused must be guilty of counts 3 and 4.

Sentence Ground 4: The Trial Judge erred in finding that the Applicant occupied a position of trust with respect to the Complainant and did so in circumstances where he failed to accord procedural fairness to the Applicant. Ground 5: The Trial Judge erred in failing to take into account s 22A Crimes (Sentencing Procedure) Act 1999 (NSW) or alternatively the willingness of the Applicant to facilitate the course of justice. Ground 6: The sentence imposed was manifestly excessive.

Factual circumstances of the offending

1. There was some doubt about exactly when each of the offences occurred. It was common ground, and his Honour accepted, that he should find that each offence took place at the earliest date averred. Accordingly, for counts 2 and 3, the offending occurred when the Applicant was approximately 11 years 6 months, with count 4 occurring when he was approximately 12 years 3 months old. On the same basis the Complainant was aged approximately 6 years 9 months at the time of counts 2 and 3, and 7 years 5 months at the time of count 4.
2. By reason of the approach adopted by the Trial Judge with the agreement of counsel, it was only necessary for his Honour to make factual findings in relation to count 2. His Honour found the following facts.

Count 2

1. The Applicant was at home with the Complainant and two of their other siblings. The Applicant, who was the eldest, had been left in charge of them as their father was at work and their father's girlfriend C was at the shops. When the Applicant let the Complainant "play with his stuff", a fight broke out between them, and the Applicant locked the Complainant in a room which caused the Complainant to demand to be let out. The Applicant then let himself into the room and said to the Complainant that if "you want to come out, you gotta let me do this to ya …". The Applicant then pulled his pants down and put a condom on his penis at which stage the Complainant "kept saying 'no, [RP], no'…".
2. The Applicant then grabbed the Complainant and "threw" him on a bed and then pulled the Complainant's pants including his underpants down. He then inserted his penis into the Complainant's anus and put his hand on or around the Complainant's mouth whilst having intercourse with him. The Complainant said that this hurt and he was "crying" and that he "just kept on trying to tell [the Applicant] to stop but he had his hand up over me mouth and wouldn't stop…"
3. The Complainant said that the act of intercourse went for "a long time, it felt like a long time" and did not cease until he heard C calling out for help to get the groceries out of the car, at which point the Applicant withdrew his penis. He commenced to put his clothes on during which time he said to the Complainant "don't say nothing".
4. In relation to counts 3 and 4, the following summary is taken from the Trial Judge's Remarks on Sentence.

Count 3

1. The events which gave rise to count 3 occurred a few weeks after count 2 at the place of work of the Applicant's and the Complainant's father, GP. That place of work was the treatment works at Wagga Wagga.
2. GP took the Complainant, the Applicant and his daughter K to his place of work but he left them alone whilst he went to check some ponds and valves. This ordinarily took about one hour.
3. After GP left, the Applicant asked the Complainant to come into an office where there was a pile of workmen's clothes on the floor. Whilst in the office the Applicant took his pants down so he could "get his penis out". On seeing this, the Complainant ran towards the door but the Applicant stopped him. The Complainant also called out for K but the Applicant grabbed him and put him on the floor face down on the pile of clothes.
4. The Applicant then pulled the Complainant's pants down and commenced to have penile/anal intercourse with him which he said continued for two to three minutes. It stopped when he heard their father returning on a motor bike.

Count 4

1. These events occurred after GP had moved to a house at Karingal with his girlfriend C, probably a few months after the events that gave rise to count 3.
2. On this occasion the Complainant was watching a motor bike DVD with the Applicant whilst their father was out of the room. The Applicant put his hand on the Complainant's penis on the outside of his clothing and rubbed it for approximately five minutes. The Complainant then said that he was "starting to get sick of this" and the Applicant stopped.

Legal principles

1. The principles are for the most part conveniently summarised in a judgment of Hodgson JA (with whom Adams and Johnson JJ agreed) in BP v Regina, SW v Regina [2006] NSWCCA 172: [27] The common law concerning the criminal responsibility of children has been modified in New South Wales by s.5 of the Children (Criminal Proceedings) Act 1987 (which provides for a conclusive presumption that no child under the age of 10 years can be guilty of an offence), but not otherwise. Accordingly, as regards a child between 10 and 14 years, there remains a presumption that such a child is doli incapax, that is incapable of committing a crime because of lack of understanding of the difference between right and wrong, and consequential lack of mens rea. It is clear that when a child between 10 and 14 years is accused of a crime, the onus is on the prosecution to prove beyond reasonable doubt not only that the child did the act charged, accompanied by the necessary mental element, but also that, when doing it, he or she knew it was seriously wrong, as distinct from an act of mere naughtiness or mischief: The Queen v. M (1977) 16 SASR 589; C v. DPP [1996] 1 AC 1 at 38; R v. CRH, NSWCCA, 18/12/96; R v. ALH (2003) 6 VR 276. [28] The child must know that the act is seriously wrong as a matter of morality, or according to the ordinary principles of reasonable persons, not that it is a crime or contrary to law: Stapleton v. The Queen (1952) 86 CLR 358, The Queen v. M. [29] It has been said that evidence to prove the child's guilty knowledge must not be the mere proof of doing the act charged, however horrifying or obviously wrong the act may be: C v. DPP at 38. This was said in CRH to represent the common law of Australia; but it was strongly disapproved by the Victorian Court of Appeal in R v. ALH at [20] and [85]-[86]. However, on either view, the circumstances of the offence, such as concern to avoid detection, may be some evidence of knowledge; although, if the concern is consistent with the child thinking that the act is merely naughty, this will carry little weight. [30] It is not necessary to resolve this conflict in this case, because there was evidence in addition to the mere doing of the acts charged. However, I would say that, even if the view expressed in C v. DPP and CRH is correct, there should not be a narrow view taken on what are circumstances of the offence that can operate as evidence. For example, in the present case, assuming the jury accepted LD's evidence that she was crying and screaming and struggling and asking BP to stop, these would in my opinion be factors that could support the inference that BP knew that what he was doing was causing great distress to another human being and as such was seriously wrong. That evidence, coupled with the evidence that BP asked SW to stop LD screaming, that BP continued what he was doing after LD said she would tell the police, and the statement of Ms. Dockrill, was in my opinion plainly sufficient to base a finding by the jury, beyond reasonable doubt, that BP had sufficient understanding of the wrongness of his conduct.

Grounds 1 and 2: Unreasonable verdicts

1. This ground raises a significant matter for consideration, namely, how this Court should go about dealing with a ground relating to an unreasonable verdict in a judge alone trial. The matter is highlighted particularly in the present appeal because, not only was the trial a judge alone trial but it proceeded with no oral evidence. Although a DVD of the Complainant's evidence was tendered, the Trial Judge was urged only to read the transcript of that interview on the basis that there were no issues of credibility in the trial. It seems that the Trial Judge acceded to that suggestion.
2. Although it is clear that the principles derived from M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493 and SKA v R [2011] HCA 13; (2011) 243 CLR 400 apply also to an appeal following a trial before a judge sitting alone (W v R [2014] NSWCCA 110 at [151]), it has not been clear precisely how this Court performs that task where a judge alone trial has taken place..
3. The High Court has recently considered the matter in Filippou v The Queen [2015] HCA 29. The joint judgment of French CJ, Bell, Keane and Nettle JJ referred at [9] to Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 where it was said that each of the three limbs of s 6(1) of the Criminal Appeal Act 1912 (NSW) is capable of application to a judge alone trial. They noted that the Court left open in Fleming the question of whether the Court of Criminal Appeal should intervene under the first or third limb of s 6(1) only if it appears that there is no evidence to support a finding of guilt or the evidence is all one way or where there has been a misdirection leading to a miscarriage of justice.
4. In Kurtic v R (1996) 85 A Crim R 57 at 60 Hunt CJ at CL (with whom Grove J and Barr AJ agreed) said, in reliance on M v The Queen, that the test to be applied by this Court on the ground that the verdict was unsafe and unsatisfactory is the same whether the case was heard by a judge alone or with a jury. His Honour went on to say: In such a case, it is the duty of this Court - whether the appeal is from a jury trial or a judge alone trial - to make its own independent assessment of both the sufficiency and the quality of the evidence, in order to see whether the jury (or judge trying the case alone) ought to have a reasonable doubt or whether this Court itself experiences such a doubt or is persuaded that there is a significant possibility that an innocent person has been convicted. It has nevertheless been accepted by this Court that an appeal against conviction from a trial by a judge alone pursuant to s33 of the Criminal Appeal Act is not an appeal by way of rehearing. In the statutory context to which I have referred, this must be so. As the finding of a judge in such a trial is to be given the same effect as a verdict of a jury for all purposes, error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself or herself leading to a miscarriage of justice.

Ground 3: Using the finding for count 2 in respect of counts 3 and 4

1. In his Honour's judgment, having found that the presumption had been rebutted in respect of count 2, the Trial Judge said: It follows from Ms Mendes' concession and as a matter of logic that the accused must also be guilty of counts 3 and 4 and I accordingly find him guilty of such counts.
2. The concession made was this (T27/08/14 at p. 14): MENDES: …The submission is this, that if your Honour found that count 2 was made out beyond reasonable doubt, then it would flow from that decision that verdicts of guilty would be entered with respect to counts 3 and 4. And then again (T27/08/14 at p. 15): MENDES: …If your Honour was satisfied beyond reasonable doubt with respect to count 2 at some later stage, there would be a flow on effect.
3. The Applicant submitted that the concession should not have been made by counsel at the trial because it is necessary to look at all of the circumstances of the offending in respect of each charge. The Applicant submitted that the acts carried out by the Applicant in relation to count 3 did not demonstrate the same degree of force against the Complainant nor was there evidence of the Complainant crying or crying out. In relation to count 4, the incident involved only the Applicant manipulating the Complainant's penis through his clothes.
4. The Crown submitted that what took place in relation to count 3 was sufficiently similar to what happened in relation to count 2 with the result that the presumption, having been rebutted for count 2, should remain rebutted for count 3. In relation to count 4 the Crown, while accepting that different acts were involved, submitted that the Applicant was a year older and much closer to being aged 14 years so that the presumption was weaker.
5. Because of the concession made by the Applicant's counsel at the trial rule 4 applies. In my opinion the matter is of such significance that leave should be granted. At least in relation to count 4, as I will discuss, a miscarriage of justice is established.
6. The enquiry on each count is whether the Applicant knew that the act charged was seriously wrong. In relation to count 3 the act charged was the same act as charged in relation to count 2. Although surrounding circumstances such as the Complainant crying or being forcibly thrown down, or having his mouth covered by the Applicant's hand all contributed to the conclusion that the presumption was rebutted, the absence of those circumstances in relation to count 3 does not have the effect that the Applicant did not know that the act charged in count 3 was not seriously wrong. Although it is the Applicant's state of mind which must be examined it could not rationally be inferred that because the act was carried out less forcefully or with less resistance from the Complainant the Applicant could have believed that it was not seriously wrong in the light of what he had done in relation to count 2. The surrounding circumstances in relation to count 2 demonstrated that the Applicant knew that the act charged was seriously wrong. When he committed the same act in relation to count 3 the absence of a number of the accompanying circumstances does not detract from his knowledge that the act itself was seriously wrong.

Ground 4 - The Trial Judge erred in finding that the Applicant occupied a position of trust with respect to the Complainant

1. In his Remarks on Sentence the Trial Judge said this: Moving to the objective seriousness of the offending, the Court of Criminal Appeal has identified a number of relevant factors to consider when assessing this question in relation to an offence contrary to s 66A. These are discussed in such cases as R v AJP [2004] NSW CCA 434, MLP v R (2003) 164 A Crim R 93, R v PGM (2008) 174 A Crim R 152, and [Hibberd v R (2009) 194 A Crim R 1]. I will deal with several of these factors now. … Sixthly, the relationship between the complainant and the offender is also of some relevance in that, to a degree, the offender was in a position of trust with respect to the complainant, especially in relation to count 2 when he was left in charge of the other children, including the complainant. (emphasis added)
2. His Honour then determined that both counts 2 and 3 fell within the mid-range of offences of the type with count 2 being the more serious. In respect of count 4 his Honour found that it fell into the low range for offences of the type but not towards the bottom of the range.
3. The only evidence relevant to the issue of the Applicant being in a position of trust was found in this portion of the transcript: Q202. O.K. So like you just described like the first incident how you said that he touched you and you were locked in the room. Tell me about the first time you remember him putting his penis in your arse? A That was when dad and that weren't home and he had to watch us. Q203. So your dad wasn't home? A. No. Q204. And neither was his girlfriend? A. [C]. Q205. [C]. And who had to watch you? A. [RP] my dad would make [RP] watch us 'cause dad was at work and [C] was at the shops. Q206. So dad was at work and [C] was at the shops? A. Yeah she went to the shop. Q207. So who was there on that day? A. Just me and [RP], [D] and [K]. Q208. So you, [RP], [D] and [K], excuse me, [K]? A. Yeah.
4. Contrary to the Applicant's submission, his Honour did not determine that the Applicant's position of trust was an aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act. Rather, his Honour was examining matters that were relevant to the objective seriousness of the offending. Nevertheless, on the basis of the evidence in that portion of the transcript, it was not open to his Honour to conclude that the Applicant was in a position of trust with respect to the Complainant. Although the Crown submitted that the Applicant believed he had authority to send the Complainant to his room as a punishment, that raises the further issue, not explored at the sentencing hearing, of whether the Applicant understood or was capable of understanding what a position of trust might entail in terms of behaviour.

Ground 5: Failure to take into account the provisions of 22A of the Crimes (Sentencing Procedure) Act

1. Section 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) relevantly provides: 22A Power to reduce penalties for facilitating the administration of justice (1) A court may impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment having regard to the degree to which the administration of justice has been facilitated by the defence (whether by disclosures made pre-trial or during the trial or otherwise).
2. Section 21A(3)(l) lists as a mitigating factor to be taken into account "the degree of pre-trial disclosure by the defence (as provided by s 22A)".
3. The Applicant relied alternatively on the provisions of s 22A together with s 21A(3)(l) and on a general willingness to facilitate the course of justice by limiting the issues in the case. To the extent that reliance was placed on s 22A it is difficult to see how error can be said to have occurred when his Honour was never asked to impose a lesser penalty by reason of that section.
4. Nor, for that matter, was his Honour asked to take into account the Applicant's willingness to facilitate the course of justice, by limiting the issues and not requiring the Complainant for cross-examination, outside the auspices of s 22A.
5. In Avery v R [2015] NSWCCA 50 Bellew J (R A Hulme and Davies JJ agreeing) said: [72] … It is not open for a party to come to this Court and assert error on the part of a sentencing judge based upon a failure to take a particular course which the judge was never asked to take. Generally speaking, a party is bound by the manner in which the case is conducted at first instance: Zreika v R [2012] NSWCCA 44 at [80] and [82] per Johnson J.
6. The Crown submitted that it was clear that the course adopted by the Applicant in agreeing not to contest the facts was for the purpose of having counts 1 to 4 severed from counts 5 and 6 which related to offences charged at a time when the Applicant was over the age of 14 years. The Crown submitted that the approach to the trial of counts 1 to 4 was not necessarily for the facilitation of justice but was for the purpose of obtaining the forensic advantage of severing the other counts from the indictment.
7. Simply because it was part at least of the Applicant's motivation to secure such a forensic advantage cannot mean that justice was not facilitated by the resultant arrangement. What is clear is that the trial proceeded expeditiously and economically, and the Complainant was not required for cross-examination. There were obvious savings of cost and a considerable advantage to the Complainant.

Ground 6: Sentence manifestly excessive

1. By reason of the error found in respect of Ground 4, it is necessary to consider whether any lesser sentence is warranted after an independent exercise of the sentencing discretion: Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 at [43]. In that way it is not necessary to consider whether the sentences imposed were manifestly excessive.

Re-sentence

1. As a result of what was said in Kentwell at [43] there has been some debate concerning how the process there described is to be carried out, particularly in relation to the application of the proviso in s 6(3) of the Criminal Appeal Act 1912 (NSW). Any differences in the approach to be taken to the sentence originally imposed appear to me to have been removed by the analysis carried out by R A Hulme J in Thammavongsa v Regina [2015] NSWCCA 107 at [16] - [25] and seemingly accepted by Simpson J in the same case at [6]. What that analysis makes clear is that it is not appropriate in undertaking the process referred to in Kentwell at [43] for this Court to conclude merely that the sentence imposed at first instance is within the range of appropriate sentences.
2. In addition to the material before the Trial Judge at the sentencing hearing, the Applicant read on the appeal two affidavits concerning his time in custody. These affidavits, one by the Applicant and one by his solicitor annexing the Applicant's custodial case-notes, demonstrate the problems the Applicant has had whilst in custody largely as a result of the offences for which he has been sentenced. He has spent a reasonable period of time on protection with all the limitations that this form of custody entails, and he has been assaulted at various times. He is reported as being a good worker who is polite and gets on well with the other inmates.
3. The Trial Judge dealt at length with the reports from three psychologists, Dr Pulman, Dr Ashkar and Mr Champion. All agreed that his intellectual abilities were in the borderline to low average range but with significant variation amongst different cognitive abilities. Dr Pulman thought that he was not suffering from any mental illness at the time of the offending and that there was no evidence of cognitive difficulties or disabilities which were likely to have been contributing factors to his offending behaviour.
4. Dr Ashkar considered that the Applicant had poor emotional regulation and behavioural inhibition skills. He suspected that these matters underlay the Applicant's behavioural difficulties and sexual offending behaviour. The Trial Judge accepted that the Applicant's premorbid intellectual functioning and his considerable immaturity at the time of offending meant that the need for general deterrence was diminished.

Conclusion

1. I propose the following orders: 1. Grant leave to appeal in respect of the conviction appeal. 2. Appeal upheld with respect to count 4. 3. Quash the conviction in respect of count 4 and enter an acquittal. 4. Dismiss the conviction appeal in respect of counts 2 and 3. 5. Leave to appeal in respect of the sentence. 6. Dismiss the sentence appeal.
2. HAMILL J: I have had the considerable advantage of reading in draft the judgment of Davies J. I gratefully adopt his Honour's careful analysis of the facts and issues which arose in this appeal. His Honour has set out the grounds of appeal and I need not repeat them.
3. I agree with Davies J that it was open to the primary judge to find that the prosecution had rebutted the presumption of doli incapax in relation to count 2 and with his conclusion that ground 1 must be rejected.
4. I also agree with Davies J that the verdict in relation to count 4 should be set aside and that a verdict of acquittal should be entered. I agree with his Honour's reasons for that conclusion.
5. However, I have come to a different view in relation to the conviction appeal relating to count 3 and in relation to the outcome of the application for leave to appeal against sentence. I have concluded that the appeal in relation to count 3 should be upheld and the conviction quashed. The appeal against sentence should also be upheld and the applicant re-sentenced to a suspended sentence. These are my reasons for those conclusions.

Some observations on the law of doli incapax

1. Davies J has explained the operation of the presumption of doli incapax by reference to the statute and case law. I do not disagree with anything that his Honour has written but refer to some aspects of the law that guide my consideration of the appeal.
2. In New South Wales, it is "conclusively presumed" that a child under 10 years of age cannot be guilty of an offence: s 5 Children (Criminal Proceedings) Act 1987 (NSW). The common law provides that for children between 10 and 14 years of age there is a presumption of doli incapax (incapable of crime) which may be rebutted by evidence called in the prosecution case: see, for example, R v Gorrie (1919) 83 JP 136, C (A Minor) v DPP [1996] AC 1, Regina v CRH, BP v R, SW v R ; see also the helpful analysis by Matthew Johnston, 'Doli Incapax' (Paper presented at the Legal Aid Children's Legal Service Criminal Law Conference, Sydney, 30 May 2009).
3. The prosecution must establish (beyond reasonable doubt) that the child knew that the act was "seriously wrong as a matter of morality": BP v R, SW v R at [28]. In R v Gorrie, Salter J directed the jury that: "[The prosecution] must satisfy the jury that when the boy did this he knew that he was doing what was wrong - not merely what was wrong but what was gravely wrong, seriously wrong."
4. The age of the child is an important consideration in determining whether the presumption has been rebutted. Given the conclusive presumption in s 5, it follows that the closer the child is to the age of 10, the more cogent the evidence must be to rebut the presumption. In DK v Rooney & Anor (Supreme Court (NSW), 3 July 1996, unrep), McInerney J said: "...it (the prosecution) must make it appear to the tribunal that the child knew at the relevant time that what he or she was doing was more than merely naughty or mischievous. The standard of proof is the criminal standard. The presumption is irrebuttable, as I have said earlier, if the child has not attained ten years of age. It is also clear that the closer the child comes to that age (i.e. ten) the stronger must be the evidence to rebut the presumption."
5. Equally, "[t]he authorities are clear that the nearer the child in question is to the age of 14, the less strong need the evidence be if the presumption is to be rebutted": R (a Child) v Whitty (1993) 66 A Crim R 462 (Harper J).

Count 2 and appellate review of an unreasonable verdict in a judge alone

1. I agree with Davies J that it was open to the trial judge to find that the prosecution had rebutted the presumption of doli incapax in respect of count 2. I agree with his Honour's reasons for that conclusion on the facts of this case. The High Court has recently confirmed that, in light of s 133(1) Criminal Procedure Act, the application of s 6(1) Criminal Appeal Act is the same whether the trial is conducted by jury or by judge alone: Filippou v The Queen [2015] HCA 29 the at [12] (French CJ, Bell, Keane and Nettle JJ) and [82]-[83] (Gaegler J).
2. In the circumstances of this case, a doubt entertained by this Court would almost certainly be a doubt that the Trial Judge ought to have experienced: see M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 495; see also Filippou at [138]. That is because all of the evidence at trial was tendered in documentary form and the Trial Judge enjoyed no advantage in experiencing the atmosphere of the trial or in assessing the witnesses as they gave evidence.
3. I have reviewed the evidence and am not left with a reasonable doubt that the prosecution had, with respect to count 2, rebutted the presumption of doli incapax. In respect of count 2, the Applicant conducted himself in a way that suggested that he was aware that what he was doing was seriously wrong. He covered the Complainant's mouth to stop him from crying out and told the Complainant not to tell. The act of intercourse was accompanied by some force and the Complainant was crying. In spite of the Applicant's submission to the contrary, it is difficult not to infer that the Applicant was aware of the distress he was causing to the Complainant.
4. This is not a case like DK v Rooney where the act of "homosexual intercourse" committed by a child of 12 years was held by McInerney J to be insufficient in itself to rebut the presumption. In the present case, the "circumstances attending the act" and "the manner in which it was done" established that the Applicant was aware that what he did was seriously wrong.

Count 3

1. As a result of a concession by counsel for the Applicant at the trial, the Trial Judge gave no independent assessment to the facts and circumstances of counts 3 and 4. The judgment reflects this. In convicting the Applicant in relation to those counts, all that his Honour said was this: "It follows from [defence counsel's] concession and as a matter of logic that the accused must also be guilty of counts 3 and 4 and I accordingly find him guilty of such counts."
2. This approach was erroneous in both fact and law. To understand that conclusion it is necessary to consider the Trial Judge's reasons for concluding that the presumption of doli incapax was rebutted beyond reasonable doubt in respect of count 2. Those reasons were encapsulated in the following passages of the judgment: "In my view, whilst I accept that the accused is and most likely was at the relevant time of very low intelligence and for the purpose of the argument am prepared to assume that this means he possessed a lesser appreciation of the seriousness of his conduct, I am nevertheless satisfied that the evidence of the circumstances surrounding the commission of count 2 as contained in the complainants statement established beyond reasonable doubt that the accused knew that what he was doing was seriously wrong as defined and that no other rational inference arises. I do not accept [his counsel's] argument that such circumstances raise the reasonable possibility that the accused believed he was only being naughty or mischievous, nor do I accept that they raise any reasonable inference or conclusion inconsistent with the accused being aware at the time that his act was seriously wrong as defined. It is clear that the accused knew that the complainant did not want to engage in the relevant act even before it occurred, that he used force upon the complainant to commit it, and that he put his hand over the complainant's mouth in an obvious attempt to stop him calling out, no doubt to avoid detection. During the act the complainant was also crying and in pain and was trying to tell the accused to stop despite his mouth being covered, but the accused would not and persisted in the act for some time. I am satisfied beyond reasonable doubt by the obvious close proximity of the accused to the complainant during the act that he was aware that what he was doing was causing great distress to another human being but nevertheless continued the act for a significant period, further, the accused only ceased the assault when an adult arrived back home at the residence. He then told the complainant not to say anything. In my view, the accused was obviously extremely concerned that his conduct would be discovered. These facts establish much more than a belief in the accused that what he was doing was naughty or mischievous. They establish clearly, and in my view beyond reasonable doubt, that the accused knew at the time that the act he was committing upon the complainant was seriously wrong as understood. Accordingly, I am satisfied that the presumption in question has been rebutted beyond reasonable doubt by the Crown and I find the accused guilty of count 2."

Sentence

1. The sentencing Judge imposed the following sentences in relation to counts 2, 3 and 4: (3) A non-parole period of 8 months commencing 5 December 2014 with a balance of term of 1 years 4 months (total sentence - 2 years). (4) A fixed term of 3 months commencing 5 December 2014. (2) A non-parole period of 9 months commencing 5 February 2014 with a balance of term of 1 years 8 months (total sentence - 2 years and 5 months).
2. The sentence in relation to count 4 was entirely concurrent with the sentence for count 3. The sentence for count 2 was accumulated by 2 months so that the total effective non-parole period was 11 months commencing 5 December 2014 and expiring 4 November 2015. There was a balance of term of 2 years and 5 months (that imposed in relation to count 3).
3. Because of the conclusion I have reached in respect of count 3, it would be necessary (at least) to adjust the commencement date of the sentence (s 59 Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act")). However, it is also necessary to consider the Applicant's specific and general complaints in relation to the sentence.
4. I agree with Davies J that ground 4 ("the Trial Judge erred in finding that the Applicant occupied a position of trust with respect to the Complainant") is made out. I accept that the sentencing Judge was not making a finding of an aggravating feature under s 21A(2) of the Sentencing Act. However, he was plainly taking the "position of trust" into account in his assessment of the objective gravity of the offending. The Judge erred in finding that a child aged 11 or 12 years of age left in charge of his two younger siblings should be considered to be in a position of trust for the purposes of sentencing.
5. I also agree with Davies J that ground 5 ("the Trial Judge erred in failing to take into account s 22A Sentencing Act or alternatively the willingness of the Applicant to facilitate the course of justice") should be rejected. The matter was not raised during the sentencing hearing. I expect this was not an oversight but rather an ethical approach arising from counsel's knowledge of the tactical considerations underpinning the manner in which the trial was conducted. I note in particular that two other counts were severed from the indictment and that the Juvenile Justice report suggested that the Applicant denied that counts 1-4 had occurred at all. While there is little doubt that the trial was conducted efficiently, it is not appropriate in the circumstances to uphold a ground asserting error when no submission was made to the Judge concerning these matters. However, like Davies J, I take it into account in considering the question of sentence in the light of the error identified under ground 4.

Amendments 31 March 2016 - Typographical errors amended in paragraphs 36, 49, 52 and 81. 31 March 2016 - Citation in quote in para [81] amended. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 March 2016